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New Zealand Women's Law Journal Te Aho Kawe NEW ZEALAND WOMEN’S LAW JOURNAL TE AHO KAWE KAUPAPA TURE A NGĀ WĀHINE Volume 1 November 2017 Volume 1, November 2017 Copyright © individual contributors 2017 Published by LexisNexis New Zealand Limited Level 1 138 The Terrace Wellington 6011 The mode of citation of this journal is: [2017] NZWLJ (page). New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine is a double- blind peer reviewed journal. Decisions as to publication are made by the Editors-in-Chief. A catalogue record for this journal is available from the National Library of New Zealand. ISsN 2537-9658 (Print) ISsN 2537-9666 (Online) Editors-in-chief: Ana Lenard and Allanah Colley Business manager: Josie Beverwijk Marketing managers: Christine Anderson and Rez Gardi Associate editors: Sarah Alawi, Charlotte Best, Taylor Burgess, Amanda Cheng, Harriet Farquhar, Frances Gourlay, Lexie Kirkconnell-Kawana, Molly McCarthy and Angela Vanderwee Technical editors: Renée Bayer, Rosemary Broad, Laura Eaton, Katie Fowler, Sophie Hayman, Rebecca Kennedy, Christine Leung, Aimee Mackey and Tariqa Satherley Advisory board: Hon Justice Susan Glazebrook, Hon Justice Susan Thomas, Hon Judge Anne Kiernan, Lady Deborah Chambers QC, Kate Davenport QC, Frances Joychild QC and Mary Scholtens QC Academic review board: Lieutenant Colonel Jane Derbyshire, Helena Kaho, Stephanie Marsden, Associate Professor Annick Masselot, Professor Elisabeth McDonald, Helen McQueen, Brenda Midson, Khylee Quince, Associate Professor Linda Te Aho, Associate Professor Yvette Tinsley, Associate Professor Julia Tolmie, Natalie Walker, Associate Professor Nicola Wheen and Daisy Williams Contributors: Rt Hon Chief Justice Dame Sian Elias, Hon Justice Susan Glazebrook, Hon Deputy Chief Judge Caren Fox, Lady Deborah Chambers QC, Kathryn Beck, Louise Grey, Joy Guo, Nicole Ashby, Taylor Mitchell, Anjori Mitra, Jackie Edmond, Erica Burke, Tunisia Napia, Bridgette Toy-Cronin, Helena Kaho, Savannah Post, Caitlin Hollings and Rosa Polaschek Cover and design: Christine Ling Proudly sponsored by: Antonia Fisher QC, Alex McDonald and CONTENTS — RĀRANGI UPOKO Ana Lenard and allanah colley Editorial — Kōrero tīmatanga v Hon Justice Susan Glazebrook Foreword — Kupu whakataki 1 Rt Hon Chief Justice Dame Sian Elias Changing the world? 4 Deputy Chief Judge Caren Fox, Lady Deborah chambers QC and Kathryn Beck State of the Nation — Tauākī o te Motu 16 Tunisia Napia Kei hea ngā wāhine toa? Challenges for women and Tikanga Māori 32 Louise Grey Reflections from a young woman entering the profession: would a female partner quota address gender inequality within the New Zealand legal profession? 51 Joy Guo What is the best paid parental leave arrangement to promote gender-balanced caregiving in the home, and gender equality in the workplace in New Zealand? 65 Nicole ashby Absent from the top: a critical analysis of women’s underrepresentation in New Zealand’s legal profession 80 taylor mitchell Women in Paris: The inclusion of gender considerations in the negotiation and text of the Paris Agreement 113 Anjori Mitra “We’re always going to argue about abortion”: International law’s changing attitudes towards abortion 142 Commentaries — ngā pito kōrero Helena Kaho ‘Oku hange ‘a e tangata, ha fala oku lālanga: Pacific people and non-violence programmes under the Domestic Violence (Amendment) Act 2013 182 Bridgette Toy-Cronin Feminist Judgments of Aotearoa New Zealand Te Rino: A Two-Stranded Rope 192 Jackie Edmond and Erica Burke It’s time for abortion law reform in New Zealand 200 Savannah Post Harmful Digital Communications Act 2015 208 Caitlin Hollings Clayton v Clayton: Addressing the elephant in the room 215 Rosa Polaschek Power plays: the meaning of genuine consent in S (CA338/2016) v R 226 EDITORIAL — KŌRERO TĪMATANGA What started out as an idea between two friends in mid-2016 has truly flourished. As young women finishing our studies, we turned our minds to how we would serve our profession and the wider community as young lawyers. Our mutual passion lay in contributing to the creation of a world where everyone is equal, first by tackling gender inequality. Our vision for how we would start to chip away at this life-long goal was for Aotearoa to join the ranks of so many other nations around the world: to have an academic journal dedicated to examining legal issues affecting women. The New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine is now a network of women across all ages, stages and areas of the legal profession, as well as a platform to raise awareness about how the law affects women, both within the profession and more broadly. We hope that the Journal will also be a mechanism to encourage genuine conversations about gender issues in our communities. We are incredibly proud and humbled by how fast the Journal has grown in the last 18 months. We have been overwhelmed by support and enthusiasm from women from all walks of life. We are especially grateful to all who have been involved, whether it was giving advice in those early days, being a member of one of our boards or staff, financially backing the Journal, spending late nights with us editing and typesetting, or being courageous enough to submit a piece of work for publication. Everyone we have spoken to throughout the journey has been kind, encouraging and passionate about the Journal’s aims. We thank you from the bottom of our hearts and want you to know that the Journal would not be what it is without your involvement. It has been an honour to work alongside so many intelligent, hard-working and special women. We also thank our family, friends and colleagues who have supported us in realising our goals. We are now proud to present this inaugural edition and look forward with excitement to our second issue in 2018. We hope the Journal will offer v new ideas, provoke new conversations and help widen the horizons of all those who read it. He rangi tā Matawhāiti, he rangi tā Matawhānui. The person with a narrow vision sees a narrow horizon, the person with a wide vision sees a wide horizon. Ana Lenard and Allanah Colley Editors-in-Chief 29 October 2017 vi FOREWORD — KUPU WHAKATAKI The website of The New Zealand Women’s Law Journal — Te Aho Kawe Kaupapa Ture a ngā Wāhine says that it is “the only academic publication that is solely dedicated to publishing and supporting the work of women lawyers in New Zealand”. It joins a number of other prestigious women’s law journals around the world. The mission statements of the various journals show how important these publications are to broadening legal scholarship so that it encompasses other voices and points of view and, in the process, enriches the law and contributes to a better, more inclusive society. The Michigan Journal of Gender and Law is “dedicated to providing a forum for exploring how gender issues (and related issues of race, class, sexual orientation, gender identity, and culture) impact law and society”. The Columbia Journal of Gender and Law aims to promote “dialogue, debate, and awareness that will broaden the very concept of feminism”, while the Duke Journal of Gender Law & Policy takes an expansive view of the law to meet its goal “not only to explore what the law was and is, but what it could and should be”. The UCLA Women’s Law Journal says that it “uses the power of language to educate people and make women’s voices heard”. It focuses “not only on the common struggles of women, but also on diversity as a strength in feminist legal scholarship”. It seeks to “represent the reality of all women’s lives and experiences, without separating voices into exclusionary categories”. The Australian Feminist Law Journal (published out of Griffith University) “focuses on scholarly research using critical feminist approaches to law and justice”. The Canadian Journal of Women and the Law’s mandate is to “provide an outlet for those wishing to explore the impact of law on women’s social, economic and legal status, and on the general conditions of their lives”. It aims 1 [2017] NZWLJ to “increase the volume and improve the accessibility of legal scholarship by Canadian women”. In the tenth anniversary edition of the Harvard Journal of Law and Gender1 the editor, Christine Littleton,2 described the importance of feminist jurisprudence and of the journal as follows:3 Rather than seeking merely to distinguish ourselves from others, in the time-honored manner of traditional male legal discourse, feminists must explore the paradox of commonality in diversity that is our experience as women. Part of the strength of the feminist jurisprudence which the Harvard Women’s Law Journal has helped to foster has been the embracing of just this paradox. Te Aho Kawe Kaupapa Ture a ngā Wāhine is off to a good start in living up to these words. The first edition of the Journal begins with a speech by the Chief Justice of New Zealand, the Rt Hon Dame Sian Elias, identifying her experience as a woman in the law. This is followed by an analysis of the State of the Nation by Caren Fox, Deputy Chief Judge of the Māori Land Court, Deborah Chambers QC, a leading barrister, and the President of the New Zealand Law Society, Kathryn Beck. Louise Grey and Nicole Ashby, both currently working in large commercial law firms, contribute other articles on the profession. The range of articles indicates a commitment to using multiple voices and experiences to explore the position of women in the legal profession. The Journal embraces diversity more generally in all its manifestations, including in thought, ethnicity, and perspective. Tunisia Napia’s piece on challenges for women and tikanga Māori exemplifies this. The Journal has an international perspective.
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